In view of the legislation pending in the U.S. Senate and soon to be considered by the U.S. House of Representatives, Global Atlanta sent the following questions to Daryl Buffenstein and Kevin Miner, partners in the Atlanta law office of Fragomen, Del Rey, Bernson and Loewy, LLP, an immigration firm devoted to counseling corporate clients on global immigration law. It has 42 offices around the world.
After consulting with his partner Mr. Miner, Mr. Buffenstein submitted the following responses concerning issues affecting their clients dependent on foreign workers with specialized skills.
Mr. Buffenstein is a former president of the American Immigration Lawyers Association (AILA) and Mr. Miner is the vice chair of the AILA’s Liaison Committee with the U.S. Labor Department.
Global Atlanta: U.S. immigration laws are often called obsolete. Is that a correct characterization? What is wrong with the current H-1B visa laws?
Mr. Buffenstein: Currently immigration laws are totally inadequate for the needs of the business community. American employers need to be able to recruit international talent in order to bring new processes, techniques and know-how to U.S. operations. Their ability to do so is seriously impeded by quota delays.
Consider the following example: an Atlanta company producing a specialized product has an opportunity to improve that product in a way that will boost exports. The company needs to hire a specialized engineer from abroad who has particular knowledge of the new process.
The company cannot file for an H-1B visa for the engineer because the H-1B cap for the next fiscal year (starting October 1, 2012) was already exhausted in the first week of April this year.
There were over 124,000 applicants for 85,000 visa slots. The bottom line is, the company cannot file for an H-1B for this employee until April 2013, and the employee cannot start working until October 2014. This is an 18-month blackout on the ability of the company to hire this individual!
The current quota was established in 1990, 23 years ago, and was modified almost 10 years ago. It is no longer adequate for the current economy.
Global Atlanta: What about the ability of talented international personnel to get green cards in the United States? Are those rules outdated too?
Mr. Buffenstein: The immigration laws are not only an obstacle to the ability of companies to recruit international talent, they are an obstacle to retaining such talent.
Depending on the country of origin, it can take many years to get a needed employee a green card, even where the Department of Labor has already certified that the skills are in short supply.
Again, this is because the quotas for employment based immigration were set over 20 years ago and are now too small for the necessary demand. This puts many valuable people in limbo. Because of the perpetual backlogs, they are often not mobile and their families are in limbo too.
Global Atlanta: What is the impact on the business community, and on the United States relative to other countries?
Mr. Buffenstein: The outdated immigration laws are a barrier to trade and investment. To be competitive, and to innovate, businesses need access to the best and the brightest, and to those who have unique knowledge and skills.
The outdated immigration system will seriously harm the United States’ economy. In some cases, companies are forced to move research and development, or other operations, abroad in order to have access to the needed specialists.
At the same time, many other countries are changing their own immigration laws to attract international talent. The result is that the U.S. risks losing its competitive advantage.
Global Atlanta: Would the changes that have been proposed in Congress fix these problems?
Mr. Buffenstein: The proposed legislation in the U.S. Senate would substantially reduce green card backlogs and increase the H-1B quota.
These are very positive aspects.
On the other hand, the proposals contain restrictions that would be very troublesome for employers generally, particularly for certain companies. These restrictions include above market wage requirements for H-1B workers and very broad recruitment requirements and non-displacement requirements that employers would have to comply with to hire certain H-1B workers.
Certain employers who have higher levels of H-1B workers would be subject to especially onerous restrictions and prohibitions.
For example, they would not be able to install products on customer sites. In short, there are very positive and very negative aspects of the new proposals, and the impact on any particular employer should be assessed individually.
Global Atlanta: What can companies do to ensure that these changes are more helpful than harmful?
Mr. Buffenstein: Businesses that employ foreign workers in the U.S. should assess the impact of these proposals on their operations and decide which provisions would harm their operations.
For example, a company that recruits entry level employees from U.S. schools may have to pay an H-1B employee wages well above market, which would upset the company’s wage system.
Another example would be a company that places employees at its customer’s workplace, in order to install a proprietary software product it has developed for the customer.
Such a company, if it employs a significant number of H-1B workers, may be prohibited from sending them to the customer.
Once the impact is assessed, the company should consider contacting its elected representatives and also connecting with the trade and business organizations to which it belongs, in order to have them weigh in on the harmful provisions.
Global Atlanta: What is the timetable for immigration reform?
The Senate “gang of eight” kept their work very confidential until April 16 when their bill was introduced.
Now they are attempting to move it through the process very rapidly and to limit any amendments. It is on a very fast track and passage in the Senate is likely.
On the other hand, no similar, “comprehensive” bill has been introduced in the House of Representatives, and that body may rather take a piecemeal approach to reform, which would complicate matters and possibly slow the process.
Still, companies should take these proposals very seriously and realize that they have a real chance of passage and may be on an expedited track.